Allen v. Clements

• Decision Date: 02 November 2011
• Docket Number: Civil Action No. 11-cv-00657-BNB
• Parties: EDWARD ALLEN, Applicant, v. TOM CLEMENTS, and JOHN SUTHERS, Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

EDWARD ALLEN, Applicant, v. TOM CLEMENTS, and JOHN SUTHERS, Attorney General of the State of Colorado, Respondents.

Civil Action No. 11-cv-00657-BNB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: November 2, 2011

ORDER OF DISMISSAL

Applicant, Edward Allen, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Allen initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. #1). On April 18, 2011, he filed an amended application for a writ of habeas corpus pursuant to § 2254 (Doc. #5). Mr. Allen is challenging the validity of his convictions in two cases in the Fremont County District Court. The relevant state court case numbers are 03CR159 and 03CR253.

On April 19, 2011, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this action. On May 13, 2011, Respondents filed a Pre-Answer Response (Doc. #15) arguing that this action is untimely and that some of Mr. Allen's claims are unexhaustedand procedurally barred. On June 17, 2011, the Court entered an order dismissing the entire action as untimely and declining to address the exhaustion and procedural bar arguments. The Court noted that Mr. Allen had not filed a reply to the Pre-Answer Response despite being given an opportunity to do so.

On June 23, 2011, Mr. Allen filed a "Motion for Leave for Discovery" (Doc. #18) in which he indicated that Respondents had not filed a Pre-Answer Response in this action. Also on June 23, 2011, Mr. Allen filed a notice of appeal (Doc. #19) from the order dismissing this action in which he stated explicitly that he had not received a copy of the Pre-Answer Response filed in this action. On appeal, the United States Court of Appeals for the Tenth Circuit concluded that "the appropriate course is to grant a certificate of appealablity ("COA"), reverse, and remand so that the district court may revisit the [failure of service] issue and address the arguments raised by [Applicant], including any potential claim of actual innocence." (Doc. #26 at 3.)

On September 20, 2011, following issuance of the mandate by the Tenth Circuit, Magistrate Judge Boland entered an order directing Respondents to serve a copy of their Pre-Answer Response on Mr. Allen and directing the parties to submit further briefing on the failure of service issue as well as the affirmative defenses raised in the Pre-Answer Response, including any potential claim of actual innocence. On October 4, 2011, Mr. Allen filed his reply to the Pre-Answer Response (Doc. #35). On October 18, 2011, Respondents filed a brief (Doc. #36) that addresses the equitable tolling and actual innocence arguments Mr. Allen raises in his reply.

The Court must construe the amended application and other papers filed by Mr. Allen liberally because he is not represented by an attorney. See Haines v. Kerner,404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as untimely.

Mr. Allen's state court criminal cases were consolidated for trial, and he was convicted by a jury of sexual assault on a child under fifteen by one in a position of trust and sexual assault on a child under eighteen by one in a position of trust. He was sentenced to indeterminate terms of ten years to life in prison on each count to be served concurrently plus mandatory lifetime parole. On direct appeal, the judgments of conviction were affirmed, and the case was remanded for resentencing as to one of the counts. See People v. Allen, No. 04CA1752 (Colo. App. Jan. 18, 2007) (unpublished) (Doc. #15-4). On July 16, 2007, the Colorado Supreme Court denied Mr. Allen's petition for writ of certiorari on direct appeal. (See Doc. #15-6.) Also in 2007, the Colorado Supreme Court denied an original petition for writ of habeas corpus Mr. Allen filed in that court. See Allen v. Zavaras, 568 F.3d 1197, 1198 (10th Cir. 2009) (discussing Mr. Allen's state court direct appeal and postconviction filing). On April 7, 2008, Mr. Allen was resentenced on remand. (See Doc. #15-12 at 8.) He did not file an appeal following the resentencing.

Following his direct appeal and prior to his resentencing, Mr. Allen filed a federal application for a writ of habeas corpus in the District of Colorado challenging the same Colorado state court convictions. See Allen v. Zavaras, No. 07-cv-02052-ZLW (D. Colo. Nov. 13, 2007). Mr. Allen raised five claims for relief in 07-cv-02052-ZLW, four of which he contended were raised on direct appeal and one of which he contended wasraised in the state habeas petition. The federal habeas corpus action was dismissed without prejudice for failure to exhaust state court remedies, and the dismissal was affirmed on appeal. See Allen v. Zavaras, 568 F.3d 1197 (10th Cir. 2009).

On July 6, 2009, Mr. Allen returned to state court and filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure in both criminal cases, which the trial court denied on October 27, 2009. (See id. at 7; Doc. #15-13 at 5-6.) The trial court's order denying the Rule 35(c) motion was affirmed on appeal. See People v. Allen, No. 09CA2230 (Colo. App. Oct. 21, 2010) (Doc. #15-10). On February 22, 2011, the Colorado Supreme Court denied Mr. Allen's petition for writ of certiorari in the state court postconviction proceedings. (See Doc. #15-11.)

Mr. Allen's original habeas corpus application in this action was filed on March 16, 2011. In the amended application filed on April 18, 2011, Mr. Allen asserts the following eleven claims for relief:

1. The trial lacked subject matter jurisdiction because he never was charged with or convicted of a substantive crime.

2. The trial court erred in admitting expert testimony regarding the conditions of the victims' hymens and the probability of abuse.

3. The trial court erred in admitting irrelevant and prejudicial evidence.

4. He was denied due process when the victim changed her description of the alleged instrument of the offense at trial.

5. He was denied due process when the date of the alleged crime was changed.

6. The prosecution failed to meet its burden of proof.

7. The trial court held an ex parte hearing with defense counsel that prejudiced the trial court against Mr. Allen.

8. His rights to effective and conflict-free counsel were violated.

9. The trial court erred in consolidating his cases for trial.

10. The trial court erred in allowing expert testimony that bolstered the credibility of the alleged victims.

11. The prosecution committed misconduct during voir dire.

Respondents maintain that the instant action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). That statute provides as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

In order to apply the one-year limitation period, the Court first must determine the date on which Mr. Allen's convictions became final. Respondents argue that Mr. Allen's convictions became final on May 22, 2008, and Mr. Allen does not challenge that date. Based on the procedural history discussed above, the Court agrees. Mr. Allen's convictions became final when the time expired to file a notice of appeal following his resentencing on remand on April 7, 2008. Pursuant to Rule 4(b) of the Colorado Appellate Rules, Mr. Allen had forty-five days to file a notice of appeal after he was resentenced on April 7, 2008. Therefore, Mr. Allen's convictions were final on May 22, 2008.

The Court also finds that the one-year limitation period began to run on May 22, 2008, because Mr. Allen does not allege that he was prevented by unconstitutional state action from filing this action sooner, he is not asserting any constitutional rights newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, and he knew or could have discovered the factual predicate for each of his claims before his convictions became final. See 28 U.S.C. § 2244(d)(1)(B) - (D). As a result, the time to file a federal habeas corpus action expired on May 22, 2009, unless the one-year limitation period was tolled for some period of time.

The next question the Court must answer is whether any of the postconviction proceedings Mr. Allen initiated tolled the one-year limitation period. Pursuant to 28 U.S.C. § 2244(d)(2), a properly filed state court postconviction motion tolls the one-year limitation...